- The Washington Times - Monday, November 9, 2009

The Supreme Court broke along ideological lines Monday as it grappled with the question of whether some young criminals are beyond rehabilitation.

The court listened to two hours of arguments in two separate cases that have the same core issue: Is it a violation of the 8th Amendments prohibition against cruel and unusual punishment to sentence a juvenile to life in prison without the possibility of parole for a crime less than murder?

Conservative justices, including Chief Justice John Roberts and associate justices Samuel Alito and Antonin Scalia suggested a case-by-case basis for dealing with these juvenile offenders rather than a blanket prohibition against life without parole for them.

They also seemed skeptical of arguments that a 2005 Supreme Court ruling that abolished the death penalty for juveniles on grounds that it was cruel and unusual should be extended to sentences of life without parole for non-murderers.

“Death is different,” Justice Roberts said at one point.

Liberal justices, including Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor expressed concerns about juveniles receiving life without parole for crimes that saw adult offenders receive lesser penalties. They also questioned whether an adolescent is developed enough to be sentenced to prison for the rest of their life for a crime less than murder.

“The confusion and uncertainty about the moral responsibility of a 13-year-old is such that it is a cruel thing to do to remove from that individual his entire life,” Justice Breyer said. “You see, we are at the extreme.”

Both cases come out of Florida, where 77 of the 106 juveniles serving life without parole for crimes less than murder are imprisoned. The rest are incarcerated in six other states, though the vast majority of states allow for such a sentence.

“Sentencing an adolescent to life without any possibility of parole condemns him to die in prison and rejects any hope that he will change for the better,” Attorney Bryan S. Gowdy told the court. “This sentence, like the death penalty, cruelly ignores the inherent qualities of youth and the differences between adolescents and adults.”

The first case the court heard, known as Graham v. Florida, centers on Terrence Graham, who was convicted at 16 of taking part in the armed robbery of a restaurant in which the manager was bludgeoned with a steel bar. When he was 17, he took part in a home invasion in which he held a gun to the head of one of the victims.

The second crime violated the terms of his probation, which led a judge to sentence Graham to life in prison without the possibility of parole.

The other case, called Sullivan v. Florida, focused on an even rarer class of juvenile offenders who were sentenced to life in prison without parole for crimes committed before turning 14. Only two people, both in Florida, are serving life sentences for crimes less than homicide that they committed before turning 14.

One of them, Joe Sullivan, already had a juvenile record for burglary, assault and killing a dog when he was arrested in 1989 at age 13 and charged with robbing and raping a 72-year-old woman.

The attack took place after Sullivan and two other youths had burglarized the woman’s home when she wasn’t there. He returned to her home later the same day and attacked her.

He was convicted after a one-day trial and sentenced to life in prison.

But lawyers for both men argued the sentences their clients received were unconstitutional because they didnt take into account a juveniles capacity for rehabilitation.

“You are saying that, no matter what this person does, commits the most horrible series of non-homicide offenses that you can imagine, a whole series of brutal rapes, assaults that renders the victim paraplegic but not dead, no matter what, the person who is sentenced shows no remorse whatsoever, the worst case you can possibly imagine, that person must at some point be made eligible for parole,” Justice Alito said. “That’s your argument?”

“Your Honor, that’s correct,” Mr. Gowdy said. “A life with parole sentence would be constitutional, and that may mean that person you describe still spends his entire life in prison, but life with parole gives some hope to the adolescent who has an inherent capacity to change.”

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